Wragg v. Vill. Of Thornton

• Decision Date: 07 May 2010
• Docket Number: No. 08-3766.,08-3766.
• Citation: 604 F.3d 464
• Parties: Stephen J. WRAGG, Jr., Plaintiff-Appellant,v.VILLAGE OF THORNTON, a municipal corporation, John Klaczak, individually and as a agent of Village of Thornton, and Board of Fire and Police Commissioners of The Village of Thornton, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 464

Stephen J. WRAGG, Jr., Plaintiff-Appellant,v.VILLAGE OF THORNTON, a municipal corporation, John Klaczak, individually and as a agent of Village of Thornton, and Board of Fire and Police Commissioners of The Village of Thornton, Defendants-Appellees.

No. 08-3766.

United States Court of Appeals Seventh Circuit.

Argued April 5, 2010.

Decided May 7, 2010.

Farris M. Alkaraki (argued), Leahy & Hoste, Chicago, IL, for Plaintiff-Appellant.

Vincent C. Cipolla, William W. Kurnik (argued), Knight, Hoppe, Kurnik & Knight, Rosemont, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

BAUER, Circuit Judge.

The Village of Thornton's fire chief John Klaczak molested Stephen Wragg, Jr., a sixteen-year-old in the Village's fire cadet program. Wragg sued the Village under 42 U.S.C. § 1983, asserting that the Village violated his substantive due process rights under the Fourteenth Amendment by deliberately retaining Klaczak as fire chief despite knowledge of his prior improprieties with other minors. The district court granted summary judgment to the Village. We affirm.

I. BACKGROUND

We begin our review of the district court's grant of summary judgment by reciting the factual background in the light most favorable to Wragg, construing all facts and reasonable inferences in his favor. See, e.g., Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 974 (7th Cir.2009). We review only those facts whose substance would be admissible at trial under a form permitted by the Federal Rules of Evidence, although the form produced at summary judgment need not be admissible. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir.2010); Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir.2009); Macuba v. Deboer, 193 F.3d 1316, 1323-24 (11th Cir.1999). Neither party has suggested that the district court either considered evidence it shouldn't have or failed to consider evidence it should have, so we recite the facts as the district court has given them to us see, e.g., O'Neal v. City of Chicago, 588 F.3d 406, 409 (7th Cir.2009) (“[A]rguments not raised on appeal are waived.”), and as we otherwise find them in the record.

The Village of Thornton is home to about 2,400 people and is organized under the Illinois Municipal Code, 65 Ill. Comp. Stat. 5, with six elected trustees and one elected president. At all times relevant to this appeal, the Village's president was Jack Swan.

President Swan learned in 1997 that the Village's police department had received a phone call from two anonymous parents claiming that Village police officer John Klaczak had molested their minor son. Five months later, Klaczak resigned his post as a police officer, seeking rehabilitation for cocaine addiction, a fact which Swan also learned.

Swan appointed Klaczak as the Village's fire chief in 1999. Later that year, Klaczak molested minor fire cadet Eric Bruinsma in a bathroom bar. During this act, another member of the fire department walked in on them. Klaczak molested Bruinsma on other occasions as well.

Stories of Klaczak's “propensity and his like for boys and oral sex and anal sex [and] booze parties” circulated throughout the fire department, R. 115-2 at 27, and on at least one occasion the stories were related to President Swan. Id. at 26-27. Fire department member Charlie Ryan once expressed to Swan that he should look into the fire cadet program, although he doesn't remember whether he asked Swan to investigate only Klaczak's hosting alcohol and drug parties that cadets attended, R. 115-3 at 36-39, or also “a rumor of [Klaczak] having sexual contact” with Bruinsma Id. at 79-80.

Klaczak molested Stephen Wragg in 2001, and was arrested about six months later; Swan removed Klaczak the same day he was arrested.

Wragg sued the Village (and others not relevant to this appeal) under 42 U.S.C. § 1983. He claimed that the Village deliberately retained Klaczak despite his known propensity to molest minors, and that the Village's deliberately indifferent employee retention policy caused a violation of Wragg's substantive due process rights.

The district court granted summary judgment to the Village, finding that the Village's final policymaker with respect to Klaczak's retention was the board of trustees, and that only one trustee had knowledge of Klaczak's sexual propensities. The court concluded that there could be no municipal liability for the isolated acts of only one member of a multi-member board. Doe ex rel. Doe v. V. of T., No. 02-C-7680, 2008 WL 4450317, at **7-8 (N.D.Ill. Sept. 30, 2008) (citing Rasche v. Vill. of Beecher, 336 F.3d 588, 601 (7th Cir.2003)). Moreover, the district court found that even were President Swan the Village's final policymaker, Wragg could not show that Swan's inaction “rose to the level of deliberate or reckless indifference as is required for municipal liability.” Id. at *9.

II. DISCUSSION

We review the district court's grant of summary judgment de novo. Ekstrand, 583 F.3d at 974. Summary judgment is proper if the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact such that the Village is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). We may affirm the district court's grant of summary judgment for any reason supported by the record. See Capocy v. Kirtadze, 183 F.3d 629, 632 (7th Cir.1999); Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 577 (7th Cir.1998).

The Fourteenth Amendment mandates that a state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV. A state usually need not protect its citizens from “private actors,” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); cf. Nabozny v. Podlesny, 92 F.3d 446, 459 n. 13 (7th Cir.1996) (outlining factors indicating a custodial relationship in which states have an affirmative duty to protect from private actors), but it may not violate due process via one of its own actors. Collins v. City of Harker Heights, 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); DeShaney, 489 U.S. at 195, 109 S.Ct. 998; Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 723-24 (3d Cir.1989). Klaczak was a governmental actor, not a private actor, as he undisputedly committed the abusive acts against Wragg in the line of his duty as fire chief. See Appellant's Br. at 5-6. So Wragg had a substantive due process right not to be harmed by Klaczak. See Stoneking, 882 F.2d at 725 (citing City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)) (“Nothing in DeShaney suggests that state officials may escape liability arising from their policies maintained in deliberate indifference to actions taken by their subordinates.”).

The remainder of our inquiry concerns whether Klaczak's violation of Wragg's rights can impute liability to the Village. A village or other municipality may be found liable under § 1983 when it violates constitutional rights via an official policy or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). (Or via a conspiracy, but Wragg's evidence that a conspiracy occurred here is so lacking that we need not address it.) To establish an official policy or custom, a plaintiff must show that his constitutional injury was caused “by (1) the enforcement of an express policy of the [village], (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority.” Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir.2001) (citing McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir.2000)).

Wragg has pointed to no Village policy that was express. Nor has he established a practice so permanent, well-settled, and widespread as to constitute custom or usage, because the moving force behind Wragg's injury is at least as likely to be the Village's “one-time negligen[ce] ... peculiar to” Klaczak. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 407-08, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197); see also Daniels v. Williams, 474 U.S. 327, 328, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (finding that a denial of due process requires demonstrating a deprivation of liberty or property that is more than merely negligent); Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (same).

So Wragg is left with the third avenue of establishing municipal liability in which he must show that he was injured by a municipal official with “final policymaking authority.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); id. at 142, 108 S.Ct. 915 (Brennan, J., concurring); Latuszkin, 250 F.3d at 504. Whether a particular official has final policymaking authority is a question of state law Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (citing Praprotnik, 485 U.S. at 123, 108 S.Ct. 915); Rasche, 336 F.3d at 600, including positive state law and “customs and practices having the force of [state] law.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 676 (7th Cir.2009).

The Village contends that neither in the district court nor here did Wragg present “any argument as to which individuals in the Village possess final policymaking authority,” Doe, 2008 WL 4450317, at *7, and that therefore his Monell claim is waived. See, e.g., Bus. Sys. Eng'g, Inc. v. Int'l Bus. Machs. Corp., 547 F.3d 882, 889 n. 3 (7th Cir.2008) (“Arguments not raised before the district court are waived on appeal.”); O'Neal, 588 F.3d at 409 (“[A]rguments not raised on appeal are waived.”). Another way to interpret Wragg's briefs, however, as he...